CDLA 7980/95

The Office of Social Security and Child Support Commissioners
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992 
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
COMMISSIONER J P POWELL
Tribunal:
Tribunal Case No:
 
1. This is an appeal by the adjudication officer, with the leave of the chairman, against the decision of the social security appeal tribunal ("the appeal tribunal") given on 18th January 1995. For the reasons set out below, that decision is not erroneous in point of law and accordingly this appeal fails. 

2. The claimant, who was born on 1st May 1956, suffers from a severe learning difficulty and is an epileptic. She is unable to care for herself. She has been represented at all stages of this appeal by Mr S.D. Adair, who has been appointed to represent her by the Secretary of State. Save in one respect, it is not in issue that the claimant is entitled to the highest rate of the care component, and the lower rate of the mobility component, of disability living allowance. The issue in this appeal is whether or not the claimant is being maintained free of charge while undergoing medical or other treatment as an in-patient in a hospital or similar institution under the National Health Service Acts. If she is, then regulation 8 of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890) ("the DLA Regulations") provides that she is not entitled to the care component while that situation continues. 
3. Regulation 8 of the DLA Regulations, as amended, is in the following terms:
  
"8.(1) Subject to regulation 10, it shall be a condition for the receipt of a disability living allowance which is attributable to the care component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient -
  
(a) in a hospital or similar institution under the NHS Act of 1977, the NHS Act of 1978 or the NHS Act of 1990; or
(b) in a hospital or other similar institution maintained or administered by the Defence Council.
(2) For the purposes of paragraph 1(a) a person shall only be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under section 65 of the NHS Act of 1977 or section 58 of, or paragraph 14 of Schedule 7A to, the NHS Act of 1978, or paragraph 14 of Schedule 2 to the NHS Act of 1990."
Neither regulation 10 of the DLA Regulations, nor the various provisions of the National health Service Acts referred to in regulation 8(2) are relevant for the purposes of this appeal.

4. By a decision dated 13th February 1994, the adjudication officer decided the care component of disability living allowance was not payable to the claimant for any day of free hospital in-patient treatment from and in including 14th April 1993. This was because he considered that the accommodation to which she moved on 14th April 1994, was a hospital or similar institution. See page T5 of the case papers. The claimant appealed to the appeal tribunal which heard and unanimously allowed her appeal on 18th January 1995. 

5. The adjudication officer appeals to a Commissioner with the leave of the chairman. His grounds of appeal are that the appeal tribunal failed to make adequate findings of fact as required by what is now regulation 23(1)(b) of the Social Security (Adjudication) Regulations 1995 (SI 1995/1801),
"... in order to decide that the claimant was not maintained free of charge while undergoing medical or other treatment as an in-patient in a hospital or similar institution (as set out in regulation 8 of the Social Security (Disability Living Allowance) Regulations 1991) while resident at her new address following her discharge from hospital."
6. The back-ground to this appeal is that the claimant became resident in long stay hospital accommodation in June 1976, when she was about 20. She remained in such accommodation until April 1993. Then, in accordance with the general policy of dispersing the inmates of such hospitals into the community, she was discharged from hospital on 14th April 1993, and went to live in a house which I shall refer to as "No 167". So far as I am aware, she is still living there. In view of the grounds of appeal, it may be helpful if I set out the chairman's note of the evidence.
"[The Presenting Officer] on behalf of the Adjudication Officer submitted that a decision was made in November 1992 for Disability Living Allowance to be awarded to [the claimant]. This was awarded from June 1992 and at that time [the claimant] was resident in Offerton House which is a hospital run by the Stockport Health Authority. She was resident in Offerton House between June 1976 and 14 April 1993. Offerton House was closed in 1993 and after her discharge from hospital in April 1993 she went to live at [No 167]. It was from that address that Mr Adair, the appointee of [the claimant], applied for a review in respect of Care Component of the Disability Living Allowance. The Adjudication Officer reviewed the decision on the basis that the Care Component of the Disability Living Allowance is not payable to [the claimant] for any day of free hospital in-patient treatment from and including 14 April 1993. She has been confirmed as being a resident in certain accommodation which in the Adjudication Officer's submission is a hospital or other similar institution. All residents are cared for 24 hours a day by Health Authority staff.
Mr Adair said that after [the claimant] was discharged from Offerton House she went straight to [No 167]. She is one of 6 tenants at the house. All receive Income Support and all get Mobility Components of Disability Living Allowance. They pay rent through Housing Benefit. All the bills for the payment of electricity, water, gas etc and food are paid from the respective incomes of the 6 tenants. They also pay for domestic help to clean the house. They are also obliged to upkeep the internal decoration and repair of the house. There is a formal tenancy agreement and the landlord is a Mr Wild a private individual. Mr Adair signed the tenancy agreement as appointee for all tenants. The tenancy agreement is for 10 years. Each tenant pays £117 per week rent. There are 7 employees of the Stockport Health Trust paid by the Stockport Health Trust who provide 24 hour care for the tenants.
Each tenant either visits or his/her General Practitioner calls to see the patient at [No 167]. Any medication is prescribed by his/her own doctor and is obtained from a Pharmacy in the usual way. Each of the tenants is entitled to come and go as he pleases. The house is large lots of space which is needed for the tenants with mental and physical problems. There are no hospital facilities at [No 167].
[The name of another occupant] a tenant at the property is in receipt of the Care Component of Disability Living Allowance. He is a tenant in all similar circumstances to [the claimant], the appellant in this case."
That is is the complete note of the evidence and it has not been suggested that it is inaccurate. Accordingly, the presenting officer did not adduce any further evidence or make any other submissions than those recorded in the note.

7. The appeal tribunal made the following findings of fact and gave the following reasons for allowing the appeal.
"[The claimant] was discharged from hospital to [No 167] on 14 April 1993. 24 hour care and support is provided by the Health Authority. She is unable to manage her own affairs but she is a tenant with other persons at [No 167] and is responsible for the rent, outgoings, food, medication, cleaning and upkeep of the property. She does not therefore receive free in-patient treatment."
Their reasons were as follows.
"The evidence shows that the claimant was discharged from Offerton House in April 1993 where she had been a resident since June 1976 and had received full in-patient treatment. From 14 April 1993 [the claimant] moved to privately rented accommodation at [No 167] and she became a tenant signing a tenancy agreement through her appointee for the period of 10 years. The house being privately rented from Mr Wild. She was one of six tenants paying economic rent through Housing Benefit and her other income comprised Income Support and various associated benefits. From her income she had to support herself including the purchase of food, the cleaning of the house etc. As a tenant she was free to come and go as she pleased, the emphasis being on a home and not a hospital or other similar institution. Although the staff looking after the tenants were provided by Stockport Health Authority, medication was provided through the General Practitioner of the tenants and not through any hospital. Under no circumstances did the tribunal find that [No 167] is maintained as a National Health Hospital. The tribunal found as fact that [No 167] is not a hospital or similar institution as defined under Section 128 of the National Health Act 1977."
In my judgment the findings and reasons of the appeal tribunal accurately summarise the evidence given at the hearing and I see nothing wrong with them. 

8. The claimant was undoubtedly in need of a high degree of care which, I am prepared to assume, fall within the words "medical or other treatment". However, to bring regulation 8 into play, the medical or other treatment must be provided "in a hospital or similar institution". Those words, which appear three times in regulation 8, are of great importance in the present appeal. The appeal tribunal were prepared to accept that the word "hospital" should be construed in accordance with the wide and extended definition in section 128 of the National Health service Act 1977, which provides:
""hospital" means -
(a) any institution for the reception and treatment of persons suffering from illness,
(b) any maternity home, and
(c) any institution for the reception and treatment of persons during convalescence or persons requiring rehabilitation,
and includes clinics, dispensaries and out-patient departments maintained in connection with any such home or institution, and "hospital accommodation" shall e construed accordingly;"
However, they decided on the facts that an arrangement whereby six persons rented a house, for the rent of which, and other outgoings, they were responsible, was not "a hospital or similar institution" even though they were provided with 24 hour help and nursing care. That was a decision to which they were entitled to come. 

9. Paragraphs (a) and (c) of the definition begin with the words "any institution". In my judgment, when those words are used in connection with the word "hospital", they connote some sort of formal body or structure which controls all aspects of the treatment or care that is provided including the premises in which that treatment or care is carried out. They mean more than just a building in which care and treatment takes place. In this appeal, the treatment or care takes place in a private house which is let to the six occupants. They are the persons responsible for the payment of rent and other outgoings and for the purchase of their food. The appeal tribunal so found as they were bound to find on the evidence presented to them. Furthermore, the chairman's note of evidence shows that the presenting officer did not challenge that evidence. He could have questioned Mr Adair on the arrangements that had been made but did not do so. He could have sought directions for the production of further evidence and he could have sought an adjournment, which would have been difficult to refuse, in order that the lease of No 167 and other relevant material could be produced but he did not do so. On the appeal tribunal's findings there is simply no institution in the sense in which I consider the word must be construed. Further, no one would suggest that the arrangements at No 167 could be described as "a hospital" in any popular sense even though treatment and care is carried out there. Finally, I consider that the word "institution", where it appears in regulation 8, should receive a similar construction. Accordingly, No 167 is not only not a hospital but it is also not a "similar institution". 

10. I accept that the claimant was incapable of looking after her own affairs. Indeed, some doubt must exist as to exactly what is her legal position vis a vis the tenancy agreement although that does not necessarily mean that the lease is invalid or that the claimant is not, at least, a contractual licensee. Clearly, the arrangements were made for her by Mr Adair, her appointee, and others. Clearly her affairs continue to be dealt with by Mr Adair and others. However, the fact that such arrangements exist does not mean that No 167 and its six occupants have become an institution.

11. In written submissions dated 4th October 1995, the adjudication officer has expanded on the grounds of appeal. Before I come to those grounds a general comment may be appropriate. The jurisdiction of a social security appeal tribunal is inquisitive. See R v Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456 at 486. The tribunal is not bound by the contentions of the parties and must investigate relevant matters of which it has notice. However, tribunals are not omniscient and it is the duty of the presenting officer to direct their attention to matters about which they may not be aware. Further, finality is another important principle. Parties cannot demand a rehearing simply because, at the original hearing, they failed to adduce the right evidence, failed to ask the right questions or failed to advance the right arguments. 

12. The adjudication officer submits that the findings that the claimant was unable to manage her own affairs but was responsible for the rent and other outgoings, food, medication, cleaning and the upkeep of No 167 are inconsistent. I do not agree. A person who is mentally disabled still needs to be fed, clothed and housed. The fact that arrangements have to be made to manage such a person's money and affairs does not mean that he or she ceases to be responsible for the cost of food, clothing and accommodation ordered in his or her name. A person suffering from mental disorder is liable to pay for necessities with which he or she has been supplied. This has always been the case at common law and is now statutory in relation to goods. 
13. The adjudication officer submits that the appeal tribunal failed to make findings of fact about the level of care and attention with which the claimant was supplied. However, they did not have to make any such findings because there was no issue about the matter. It was common ground that the claimant was severely disabled and that a high degree of care was supplied. The presenting officer told the appeal tribunal that all the occupants of No 167 "are cared for 24 hours a day by Health Authority staff". Mr Adair said that there "are 7 employees of the Stockport Health Trust paid for by the Stockport Health trust who provide 24 hour care for the tenants". There was no dispute about this and therefore no need to make detailed findings. The presenting officer was free to question Mr Adair about exactly what care the claimant received but did not do so. Given the evidence of both the presenting officer and Mr Adair about the high level of care supplied and given that it was common ground - this being the reason why the claimant had been awarded the highest rate of the care component and the lower rate of the mobility component - that she herself required attention 24 hours a day, I do not think the appeal tribunal can be faulted for not investigating her care requirements further.

14. In paragraphs 13 to 15 of his submissions, the adjudication officer submits that the appeal tribunal erred by failing to investigate a number of matters to which he refers. I do not agree. In the first place, some of these matters are really comments or submissions on the facts which could have been advanced at the hearing. Secondly, the essential facts emerged with clarity. No 167 was rented from Mr Wild. The rent was paid out of the social security payments of the the six occupants and such payments discharged all their other outgoings and food bills. It was common ground that the health authority provided and paid for 24 hour nursing care. It was common ground that the claimant needed 24 hour care. Some of the questions which the adjudication officer submits should have been investigated really come down to a refusal to accept Mr Adair's evidence at face value. If that is right, then these are matters about which the presenting officer should have questioned Mr Adair at the hearing. 
15. The adjudication officer also relies on the judgment of Ralph Gibson LJ in White v Chief Adjudication Officer and Secretary of State, a decision of the Court of Appeal in which judgment was delivered on 21st July 1993. However, that case is not in point. It involved a privately owned nursing home registered under the Registered Homes Act 1984 both as a nursing home and a residential care home. It was, therefore not surprising that the Court of Appeal decided that it fell within the expression "hospital or similar institution, under the National Health Service Act 1977 ..." when used in regulation 2(2) of the Social Security (Hospital In-Patients) Regulations 1975 (SI 1975/555), in view of the arrangements which had been made by the relevant district health authority. It was not in issue in the White case that the particular nursing home was an "institution" and therefore the Court of Appeal did not have to decide whether it was or was not. That is the point which arises in this appeal and on which the White case does not assist. 
16. For these reasons I dismiss the appeal.

Signed
J.P. Powell
Commissioner 
30 June 1997
  
© Crown Copyright 1997.